APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Kirkwood Lord Macfadyen
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Appeal No: XC180/02 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL AGAINST SENTENCE by JAMIE CHALMERS WALKER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Wheatley, solicitor advocate; Blacklock Thorley
Respondent:
D.J.T. Logan, ad hoc A.D.; Crown Agent17 June 2003
[1] The appellant appeared at the High Court at Edinburgh and, after trial, was convicted of assault and robbery. The charge narrated that on 15 May 2002 at the Shell Garage, Ferrymuir Gait, South Queensferry, he assaulted Alan Neil Rae, an employee there, presented a knife and a firearm, namely a shot gun or similar weapon, threatened him, demanded money from him, placed him in a state of fear and alarm and robbed him of £80.35 of money and a quantity of cigarettes. The offence was committed when the appellant was on bail. He was sentenced to three and a half years detention, two months of which was attributable to the bail aggravation, and the trial judge also made a supervised release order for a period of 12 months in terms of section 209 of the Criminal Procedure (Scotland) Act 1995. There were two co-accused, Philip Sheridan and Shane Jansen, both of whom pled guilty to the offence prior to the commencement of the trial. Sheridan received an extended sentence, the custodial term being four and a half years and the extension period being 12 months. Jansen was sentenced to three and a half years detention and the trial judge also made a supervised release order for a period of 12 months. Jansen, like the appellant, appeared as a first offender but he was three years older than the appellant. [2] The circumstances in which the offence was committed are set out in the Report by the trial judge. On the night in question the complainer, Alan Rae, a 19-year-old student, was on duty alone at the Shell Garage in South Queensferry. He was standing behind a counter to the left of the till when he saw three males enter the premises. The first two to approach the counter were both wearing hooded tops with the hood up, and the third, who was a few feet behind them, was wearing a long dark coat. One of the men with a hooded top was carrying a gun and demanded money and cigarettes. As the complainer turned round to fill a bag with cigarettes, the other man with the hooded top leaned over the counter and attempted to get money out of the till. Upon noticing that the second man was carrying a knife with a long blade which he was resting on the counter, the complainer grabbed some notes from the till and put them into a bag. The man with the long black coat did not say anything and appeared to the complainer to be watching the forecourt and acting as a look-out. The three men then left the premises together, and the complainer contacted the police. The appellant was the man wearing the hooded top and carrying the knife who leaned over the counter and attempted to get money out of the till. He gave evidence and claimed that he was coerced into taking part in the offence by his co-accused, Philip Sheridan. The only issue for the jury therefore was whether he was entitled to be acquitted by virtue of having been coerced into committing the crime. The jury, by their majority verdict, rejected the appellant's defence. [3] At the time of the offence the appellant was only 16 years of age. The trial judge informs us that she felt a degree of sympathy for him in the light of aggressive and threatening behaviour on the part of Sheridan, who was in possession of weapons. However, the defence of coercion had been rejected by the jury and, in the opinion of the trial judge, there had been an ample basis in the evidence entitling them to do so. In these circumstances the trial judge took the view that the sentence had to reflect not only the serious nature of the offence but also the role played by the appellant, which had not been confined to mere passive participation. She also had regard to the terms of the social enquiry report which disclosed that the appellant had a history of anti-social behaviour and social work department support. The trial judge also noted the prevalence at the present time of this type of assault and robbery involving the use of a weapon. [4] Before us, Mr. Wheatley submitted, on behalf of the appellant, that the sentence was excessive. In the particular circumstances of this case a non-custodial sentence would have been appropriate. If a custodial sentence was necessary, the length of the sentence which had been imposed was excessive. While the defence of coercion had not been accepted by the jury, the appellant had been in the company of two older men, and there was evidence from several witnesses that Sheridan had weapons and had exerted significant pressure on the appellant, who had been only 16 years of age at the time. The appellant had reported the matter to the police, albeit after a delay of about 48 hours. These were factors which could properly be taken into account in mitigation of sentence. In the circumstances the appellant was a suitable candidate for a community service order as a direct alternative to custody. If a custodial disposal was appropriate, the trial judge, in imposing sentence, had erred in that she had not differentiated between the appellant and Jansen, the other co-accused, who was several years older than the appellant. The appellant's age, and the pressure which had been exerted on him, placed him in a different category. He had already served the equivalent of an eighteen month sentence and he had been a model prisoner. So far as the supervised release order was concerned, it was submitted that such an order had not been appropriate and, in particular, that the requirements of section 209(1) had not been met in this case. [5] We have given careful consideration to all the submissions made to us on behalf of the appellant. In the circumstances, and particularly having regard to the nature of the offence and the fact that the appellant played an active part in it, we are satisfied that a custodial sentence was necessary. However, having regard to the age of the appellant, the fact that it appears that he was subjected to a certain amount of pressure and the other mitigating factors urged upon us, we have been persuaded that the length of the sentence was excessive. We shall quash the sentence of detention which was imposed and substitute a sentence of detention for a period of 30 months. So far as the supervised release order is concerned, the trial judge stated that she imposed that order having regard to the terms of the social enquiry report. That report states that the court may wish to consider imposing a supervised release order and that the purpose of the order would be "to support and supervise Mr. Walker whilst in the community". Section 209(1) provides that the court may make a supervised release order "if it considers that it is necessary to do so to protect the public from serious harm from the offender on his release". Having considered the terms of the social enquiry report, which stated inter alia that the appellant would benefit from departmental support as a first offender in the adult courts, and the provisions of section 209(1), we are not satisfied that the imposition of a supervised release order was appropriate in this case and we will therefore quash the order.